Katiba at Eleven

The Constitution of Kenya turned eleven years old twenty days ago. That day happened to be the day that the Court of Appeal rejected the pleas of the pro-BBI zealots and upheld the judgment of the High Court - save in the case of a few issues that didn't speak to the core of the BBI argument. The Government marked the ten-year anniversary of the Constitution but the event was marked in a muted fashion, coming as it is, when the pro-constitutional-amendment bandwagon had suffered a few setbacks, the least not being a split in the national executive regarding the fruits of The Handshake, the place of the Deputy President and the sniping from the idleness by civil society stalwarts.

It doesn't come as a surprise that the eleven-year anniversary passed without comment, whether from the government or the media. This is the last year before the next general election, which should be held on the 9th August, 2022, if Kenya isn't at war and parliament hasn't pushed back the date of the general election to 9th February, 2023 or 8th August, 2023 [see Article 102 of the Constitution].

In any case, the government was preoccupied with the BBI appeal and the national media had no interest in it - unless it was told to pay attention by the government, which seems to be the current sthatemedia relationship. I read an amazing Op-Ed by the group editorial director of the Nation Media Group, in which he tried to justify the soft-ball questions he and his fellow new editors lobbed at the president last week. While we would be excited to read a no-holds-barred bare-knuckle slug-fest interview of the president, most of us would settle for an honest accounting of the government from the head of that government. The salience of the constitutional anniversary falling on the same day as the appeal judgment should not have been given the go-bye by Mr. Mathiu and his fellow editors. And yet, it was, and we can't but wonder whether it is because news editors have fallen so low in their own estimation that writing copy for politicians and their games is what they can and intend to do.

The judiciary, also, did not care to mark the occasion and yet the BBI judgments of the High Court and the Court of Appeal were powerful affirmations of the ideals set out in the Constitution, the least not being the centrality of the people's sovereignty in the exercise of governmental powers by the president and other members of the government. The courts have awakened a powerful debate regarding what the Constitution is, what it does, whom it protects and the threats it faces from those who swore oaths to obey, preserve, protect and defend the Constitution.

Parliamentarians of all shades have proposed twenty-one separate constitutional amendment bills that have gone nowhere. Though the Bills were introduced in Parliament, they did not receive the support of the people, or the parliamentarians, for one reason or another. All proposed amendments drew strength from the utterances made by the constitution's supporters in 2010 that 80% of the draft constitution was good - and the remaining 20% could be sorted out after its promulgation. They had no intention of honouring their word; once the constitution was promulgated, they turned their attention to power-sharing and political horse-trading - the 20% that needed to be sorted out was left by the wayside. Then came along Ekuru Aukot's Punguza Mizigo Bill and the BBI Bill that wore the façade of popular support but, in truth, formed part of the desire of the political elite to exclude the people from consequential decisions that affect the lives of the people in intimate and destructive ways.

The Lancaster House constitution's guard-rails were removed with the intention of creating an imperium in the presidency and by the time section 2A was repealed in 1990, 38 amendments in total had been effected. The latest crop of 74 that formed part of the BBI Bill were a reckless Hail Mary from the political elite. They should have formed the highlight of the eleven-year celebration of the Constitution. They would have been proof that the guard-rails the Constitution has today serve a vital purpose - only truly necessary amendments that enjoy the support of the majority of the people shall be allowed t go through. Amendments designed to parcel out governmental power among buccaneers and brigands shall be fed into the woodchopper of the judiciary.

We won't be knocked down

For a long time, Kenyans took for granted certain immutable facts. We were the world champions of middle-distance and long-distance road races. Regardless of whether the races were held in chilly European capitals, tech-filled US cities or sweltering Asian ones, a Kenyan 1-2-3 was taken as a given. The Ethiopians and Moroccans were our natural challengers, and every now and then would cause an upset, but it was global received wisdom that Kenyans were kings of the road. End of.

Tokyo 2020 is testing our faith in what is known about the known universe in painful ways. There are many explanations for our heart-rending change of circumstances, most of which are the tea-leaves'-reading technical jargon of the people who care passionately about such things. I have a different explanation, one that is informed by feelings" and not technical facts.

A few months ago, one of the senior-most government officials was photographed, clean-shaven. His physical appearance had undergone such a shocking change that we were, well, shocked. I can still remember the cruel statements that were made about him and, for a moment, I felt a twinge of pity for him. But after a horrific year, where lives and livelihoods had been destroyed, rend asunder, I could understand why his physical appearance had become so shocking. The same is true of our most cherished Olympic tradition: winning road races.

When Eliud Kipchoge ran that amazing not-race in Vienna in 2019, he reminded the whole wide world what Kenyans were capable of achieving through sheer determination. A few uncharitable windbags whispered unkindly that "it must have been the special shoes" but deep down in their black hearts, they knew that what they were seeing was the magic that made Kenyans special. Mr Kipchoge is a national - nay, global - treasure, as is every single Kenyan that competes in road races.

But not even Mr Kipchoge's running mates can have escaped the hellscape that 2020 became. Training regimens were destroyed by mental and physical manxieties. Our exceptional, mentally resilient athletes can't have escaped any of the things that made Kenyans' lives that much harder. They are humans; they are not robots. They see what we see. They feel what we feel When we suffer, they suffer with us. The malaise that has enervated us as a people, surely, it must have affected them, even if a little. The paucity of medals in Tokyo is but the proof of how they too, have suffered.

I am a Kenyan and I have a Kenyan's optimism about life. Our team may not shine as brightly as it shone in London in 2012 and Rio in 2016, but I know that it will not simply give up. Our team will fight for every medal. Our team will suffer many knocks, but it will never be knocked down. And when the next Olympiad rolls around, our team will shine so bright it will shame the sun. Just you wait.

Whiteness and Black hair

One aspect of whiteness that is impossible to miss is the way Black hair is received, treated, experienced, controlled and blamed for all manner of disciplinary and professionalism issues. The image of professionalism is a white man with well-groomed hair in suit and tie in an office setting. The image of unprofessionalism is a Black woman with "natural" hair, regardless of whether or not she is in a suit, plain blouse, comfortable heels, in an office setting. That Back hair has nothing to do with whether or not one is able to execute their professional responsibilities well is irrelevant. We know what we know and that's the end of that.

Every now and then we are reminded of how much further we have to go as people to liberate ourselves from the shackles of whiteness. Just this week, a parent has reminded us that even our children, cute as they be, the loves of our lives, are not immune or immunisable from the whiteness that corrals the adults in their lives. His two years old son has been denied a place at a school because his hair does not "meet the standards" of the school. I know a dog whistle when I hear one and this one is as loud as a siren.

There is a certain type of school administrator that is incapable of seeing Black-ness as wholesome. He, or she, carries the enormous burden of erasing the Black-ness of a child to replace it with the whiteness of a "professional". It always begins with the child's hair. If it is "unkempt", it is wrong. If it is "too long", it is bad. If it is gathered as dreadlocks, it is wrong. In fact, if it is not close-cropped and brushed to a high sheen, it is wrong. It doesn't matter whether the child is a boy or a girl. If the hair is anything but that which is set by the school's standards, it is wrong - and it must be corrected, Or Else. Hence the never-ending wars between school administrators and parents over their children's attendance at school with the hair of the parents' choice. The wars of whiteness over Black-ness.

Some of you will argue, "If you knew what the school rules were, and you chose to enroll your child in that school, then you must conform to the school's rules. Otherwise, peleka mtoto shule ingine." Just like a man's inability to see his privilege in the patriarchy, so too the rule-enforcer's inability to see the pernicious, deleterious effect of whiteness on all our lives. Many of our experiences of whiteness are a series of prohibitions, the Black (human, really) things that we can't do. Things that if they were done by ypipo would not arouse comment, let alone sanction.

Hair is almost always the first thing whiteness denies Black persons. Hair must be treated to chemical or mechanical processes in order to conform to the world of whiteness. It is not acceptable even after all that chemical and mechanical manipulation - it is merely no longer objectionable. It is tolerable. It is the sun-bleached scar on alabaster skin that is not that bad. It makes whiteness feel better about itself. The world is ordered in its likeness - which is always the preferred way for the world to be ordered. And if it means that a child's social and cultural education is short-circuited, then so what?

Will it be a zombie imperialism?

I don't know whether the seven members of the Bench the Court of Appeal shall uphold the judgment of the High Court, affirm it in part and set it aside in part, or set it aside in its entirety; Mr Musinga, JA and his colleagues are playing their cards close to their collective chest. I wish I could tell you whether the arguments of the appellants and respondents resonate with Bench, but I'm not a soothsayer. However, based on my observations of what was said by some of the lawyers gesticulating actively in court, I am minded to say something about the continued assumption that the president of Kenya continues to enjoy a strong hand as the head of state and government.

The legal issues of whether or not the constitution contains a basic structure, and that this basic structure contains unamendable clauses, and that these unamendable clauses, should they be amended, would mean the replacement of the constitution, is a matter I shall leave in the able hands of the seven appeal judges. Instead, let us consider the arguments that have been advanced regarding the place of the president in the amendment of the constitution. The appellants (the unhappy men, women and government officials asking the appeal judges to overturn the High Court judgment) insist simultaneously that the president can approach the amendment of the constitution in his capacity as head of state and government and as a private citizen - Schrödinger's cat of presidential power. The respondents (the nervous men, women and civil society groups that won a momentous victory in the High Court) continue to hold that the president can only bring about an amendment to the constitution in his capacity as the head of state and government; if he wishes to initiate a popular initiative to amend the constitution, they insist, he must resign his office and take his place with Wanjiku - but who among us believes that a Kenyan president would ever resign in order to persuade the people to amend the constitution to grant him more power?

The implications of whether or not the president can participate in the amendment of the constitution in his official or private capacities are the reasons for much hand-wringing among the lawyers representing the appellants because they, in my opinion, suffer vestigial warm feelings for the concept of the president as having the widest freehand to act as he pleases as can be imagined - in short, an imperial presidency. They pine for the presidential imperialism that was engendered and entrenched by the former constitution. For those of us who can remember, the way in which the repeal of section 2A of the former constitution was initiated was by the president, at a political rally in a national stadium, turning to his attorney general and ordering him to bring a Bill for the repeal of section 2A to the National Assembly.

The now-ever-present Wanjiku was not, and had hitherto never been, afforded the courtesy of being consulted. As the president would sarcastically ask seven years later, "What does Wanjiku know about constitution-making?" it is clear that it had never occurred to the men and women cheering Mr Moi and Mr Wako on that fateful day to actually ask the citizens if the restoration of multi-partyism was a good thing or not. Things have evolved considerably since then. Beginning with the Constitution of Kenya Review Commission Act of 1997, the president's free hand has consistently been statutorily constrained, culminating with the explicit declaration in the Constitution of Kenya promulgated 11 years ago: sovereign power belongs to Wanjiku. The president is no longer the sovereign - or a sovereign for that matter. He does not wield sovereign power. He only exercises the power that Wanjiku donates to him - and no more. What the High Court did on that fateful day was to state what the words of Article 1 (1) actually mean. The awful (for the president and the pro-imperial-president cheering squad) consequence of that judgment is that what Mr Moi did in 1990 cannot be done by any of his successors, no matter how compelling a reason they fashion for it. The president can no longer order his government to amend the constitution willy-nilly - he must suffer the approval or rejection of the people.

At the end of the day, when the appellate judges read their judgment, they will be answering a simple question: is the imperial presidency dead and buried or does it still possess vestigial signs of life? The answer has serious implications. It might mean the setting aside of large swathes of constitutional obligations revolving around the participation of the people in determining their constitutional fates. The answer will also reveal who among us plays the mouse to the president's cat when it comes to protecting the values and principles of the constitution - and the rights and fundamental freedoms of Wanjiku.

If we are lucky

There are few of us who are truly privileged to have almost all, if not all, of our needs - and desires - catered for. More often than not, we always want for something - something that is just out of our reach, its scent wafting into our nostrils, enflaming our passions and, when we are careless, driving us mad with desire. It is, therefore, a test of our forbearance that for the most part, we keep our passionate desires at bay, denying ourselves the freedom that comes with the pursuit unrestrained hedonism. We learn, even when the spigots of the national treasury are thrown wide open, to temper how we enjoy the gifts that we receive.

This is not the case with those who have learnt nothing of the fatalities arising out of gluttony. Their baser instincts are so used to being satiated at the snap of their fingers that when the boom falls, the devastation it leaves behind is truly pitiable. The catastrophe is much worse when it befalls the men and women charged to govern the country. If you haven't been paying attention, in the past week, the High Court has lowered a devastating boom on the men and women top the edifice we call government. The High Court has denied them that which their political hearts desire above all else: the supine acquiescence of their subjects. The proof of the devastation is in the confused and frenzied pillar-to-post flitting by their acolytes as they attempt to set back the clock to the days when the presidential snap of the fingers led to the dismissal of bad judges.

I am most amused by the spectral whispering by their disciples in the so-called free press: editors and political journalists have spent the past week prophesying deadly outcomes if the judgment is allowed to stand. They have also amplified the voices of clever, though shortsighted, members of the Kenyan Bar who continue to make increasingly shrill observations about constitutional crises that only they can see. Few of these highly motivated sirens have bothered to take a step back and ask whether or not their sense of entitlement - theirs and those of their patrons - were ever meant to be satisfied in the first place.

The merits, or otherwise, of the appeal are neither here nor there. The highly paid legal eagles for each side of the argument will plead their case before senior judges and the best argument - or the best political argument - will prevail and the show will move on to the Supreme Court. But the question as to whether the unhappy, super-entitled men and women who disagree with the uppity-ness of the lower classes should continue to be indulged remains unanswered. The temerity with which the judges of the High Court have recklessly refused to indulge the self-centred and entitled whims of the Kenyan aristocracy has been received with shock and everything the aristocracy's loyal footsoldiers have done has represented the rage that pervades that aristocracy's psyche and salons. If the judgment is not reversed, it may very well lead to a class psychosis that shall be terrible to behold - or experience.

Kenya is yet to reckon with the existence of its aristocracy represented by its members in the political executive, the legislatures, the judiciary, business and academia and the institutions of religion that continue to offer spiritual and social solace to the lower classes. The judgment, in my opinion, is the first serious attempt to push back at the demands of the self-entitled classes. It builds on the tentative steps taken by the Chief Justice in 2017 and 2020 - the vitiating of a presidential election and the demand that parliament should be dissolved for subverting the will of the people - and, if we are lucky, the judgment might inspire us to put our foot down against the demands of the ministers of faith and the avarice of the business classes. If we are lucky.

They are called lies

The fundamental question that arises is how we ought to regulate fake news without limiting free speech outside the provisions of the Constitution. In an electioneering period, free political speech is critical. Should we even think about regulating fake news? Who even decides what fake news is and what it is not? - Mugambi Laibuta (The Fake News Pandemic)

"Fake news" is a handy euphemism for "lies". Once you make that conceptual link, it becomes apparent that it is here to stay. Humans have lied for as long as humans have had speech. Humans will continue to lie so long as lying confers an advantage of one over another. Governments lie to other governments. Governments lie to their citizens. Government officials lie to each other as they lie to civilians. It is not a pandemic; it is a design feature of humanity.

In answer to Mr Mugambi's question, no, we shouldn't think about regulating fake news aka lying except in a very narrow sense. Perjured testimony in court should be punished, for instance. Lying on governmental documents - tax returns, say - should attract stiff penalties. Lies by one person about another that cause harm should be the subject of private litigation, not criminal prosecution. It is not the place of Government to say whether or not lies between private parties are good or bad. The proponents of criminal defamation should, instead, be champions of the "I'll see you in court" culture. Suits for damages should determine the price one must pay for lying about someone else.

Mr Mugambi concludes by saying, "While there may be tools available to combat fake news, they are not widely deployed in Kenya. Perhaps we should focus on the effects of the fake news and not the contents of the fake news?" As a child, the consequences of lying were well-known. While it was not uncommon for adults to come to fisticuffs over lies told of or about them, the more socially-acceptable tools for dealing with liars included ostracisation. It was a shameful thing to be shunned for lying. Social institutions - faith and academic institutions, places of work, social clubs and peer group organisations, and the like - played a vital role in dealing with liars and mitigating the effects of their lies. Hard as it may be to believe, even political parties had processes for weeding out flagrant and egregious liars.

But today, all these social institutions accept lying from their most prominent members. I'm a member of the Law Society of Kenya. An inactive one, but that is neither here nor there. A prominent member of my Society lied about the source of an article he wrote for our journal. He lied when he was found out. He lied when he was asked to properly attribute the source of the contents of the article. He kept on lying unto the moment he was forced by a court of law to acknowledge his lie. What I found distasteful is that he did not face any sanctions from the Society. He remains a member in good standing of our professional association. He continues to appear in public without the shame of his lying hanging over him. Besides the attribution he was forced to make by the court, he has not faced any social or professional consequences for his lying. And if it hadn't been for the aggrieved party, our journal, which failed to even notice the blatant academic thieving he had engaged in, would have happily continued to celebrate him as a valued contributor.

This kind of social acceptance of lying is now prevalent in all spheres. There's a minister of faith who has lied repeatedly about a fatal road traffic accident he caused due to his reckless and dangerous driving. The pews in his church building continued to be filled until the day freedom of association was severely restricted on account of the Covid-19 pandemic. There is a senior government official who has lied about a harmful policy his ministry is pursuing that will lead to millions of Kenyan children being offered extremely substandard education. He is still in office. A senior member of the Cabinet promised to publish the contracts of a highly controversial public infrastructure works. Three years later, the contracts remain hidden behind a veil of secrecy.

It is impossible to address the consequences of lying when every social institution that can do something about liars is infiltrated and run by liars. What we should do is empower individuals as much as possible to make it easier for them to seek damages for lies that cause them harm. What Government should do is punish people who lie in official documents - tax returns, for example - or lie in official governmental proceedings - such as perjury in court. What we must also do, though I don't know if it can be done, is to restore social institutions to perform the tasks they used to perform with regards to liars. For example, faith organisations should not give liars in their midst platforms to spread their lies. Professional associations should revoke professional titles and rewards they have conferred on liars in their midst. But most of all, we should call "fake news" what it is: LIES. Properly naming the thing is the first step to dealing with the thing.

Badi-nage was not the solution

My father once owned a Citroën DS 19. The one with the directional headlights and green hydraulic fluid. The one that sat on its haunches after it had been switched off. The one that had an armrest in the rear seat that could be lifted to make space for a third passenger. The one that flew like the wind when we travelled "up-country" to see the really old people who plowed us with ridiculously stringy, yet tasty, mangos.  I absolutely loved that car.

I especially liked riding in it on those frequent occasions when he had to drive me to the doctor. We would leave home at the crack of dawn so that we would be among the first to be seen by the doctor. Then afterwards, whether or not there were syringes and injections involved, he'd buy me a snack, get me a storybook, leave me in his office as he taught his mid-morning lectures. That early in the morning, we'd come past Marigiti as the road was being washed. Yes, they washed the roads in those olden days.

This is my point: for a brief moment, after the perfidious City Council had been fired and the City Commission appointed, Nairobi City was the Green City in the Sun, where municipal services functioned, the roads were swept and washed, the kamero collected the garbage on Tuesday and Saturday, Marigiti was the place to find your freshest veggies, and Gikomba and Kariokor the place to find your kienyeji chicken and tilapia. State-sponsored schools were clean and cost-sharing hadn't yet become a burden for parents. You'd shop at Uchumi and use the brown bags to cover your textbooks which were bought from Savanis. Nairobi, for a glorious moment in time, was good even for the working classes.

Nairobi has fallen a long way from its heights in the 1980s. From the day the Sunbeam Supermarket on Tom Mboya Street collapsed, a succession of mayors and governors have bequeathed us a city that has become harder and harder to live in, even for the wealthy elite in their leafy suburbs. The streets are no longer washed, let alone swept. The kamero long ago stopped running; mountains of garbage mark the boundaries of different "zones". Yes, even the leafy suburbs can be identified by the mountains of garbage right outside their gates. Marigiti, Kariokor and Gikomba are places you venture into with trepidation. After all, who can remember that amazing year when Uhuru Kenyatta was the Minister of Local Government and six hundred tonnes of garbage were trucked out of Marigiti? Or the tens of thousands of rats that fled soon thereafter?

In the early days of the pandemic, President Uhuru Kenyatta engineered the transfer of certain municipal services from the wildly incompetent city administration of Mike Mbuvi Sonko to the martial-oriented Maj. Gen. Mohamed Abdalla Badi and his Nairobi Metropolitan Services. The General came into office with a lot of goodwill in his back. Nairobians - indeed, Kenyans - were tired with the erratic behaviour of their governor and many were confident that a man who has overseen combat missions for the '82 Air Force was just the one to sort out the problems of the benighted no-longer-green City in the Sun. 

It is apparent that the confidence was misplaced. We know and appreciate that the challenges bedevilling the planning department require root-and-branch reforms and our patience will only start to run thin if more buildings "collapse" during construction. But the fact that the General and his precious NMS continue to allow the festering problem of garbage collection to exist is unfathomable and unforgivable. Everywhere you turn, mountains of garbage moulder malodorously on roadsides - and roads. Garbage clogs surface drains and sewers. Marigiti is langusihing beneath a new six-hundred-tonne mountain of its own while Kariokor has been swarmed by motorcycle taxis and ramshackle vibanda. All the good general can show for his time in office are coloured cabro bricks in the CBD and strategically-installed water tanks in a few markets.

An example of his failures is to be seen along Landhies Road. The General has surrounded Muthurwa Marpket, built during Uhuru Kenyatta's tenure in Local Government, with a high wall. But the pavement along Landhies Road has been turned into an obstacle course and now, with the rains, is unpassable unless one is prepared to get to their destination resembling an active pig. Little care has been taken to take care of the pedestrians of Landhies Road and none seems to be forthcoming. Indeed, the area East of Moi Avenue has been allowed to get worse and worse since he took office. The secrecy of his plans and his operations does not inspire confidence. I have no confidence that he will do anything more than build beautiful infrastructure in places that need it the least and put up barriers to ensure the Landhies Road pedestrians never cross to the shiny side of town. General Badi is neither the hero we wanted nor needed. He is, at the end of the day, the martial incarnation of Mike Mbuvi Sonko and his predecessors.